Preference-Estimating Statutory Default Rules

Abstract

One puzzlement about statutory interpretation is that so many statutory canons run contrary to likely legislative preferences, sound policy, or even the judicial self-interest in avoiding being legislatively overridden. This puzzlement is deepened by the commonplace observation that judges do not consistently apply these canons but often ignore them or apply counter-canons. This article argues that the solution to these puzzles is to understand many canons as preference-eliciting statutory default rules, which maximize the satisfaction of enactable political preferences by eliciting a legislative reaction that eliminates uncertainty about what those preferences are. A preference-eliciting default rule will, however, enhance political satisfaction only when it is sufficiently more likely to elicit a legislative response than another interpretation that better estimates uncertain enactable preferences. This explains the seemingly inconsistent application of these canons because this theory indicates these canons should not be applied uniformly but rather should be (and generally are) applied when these limited conditions hold. Where the preferences of neither the enacting nor current legislatures can be reliably estimated or elicited, courts should and do use default rules that track the preferences of political subunits or, where that is unavailing, that limit the variance of judicial judgment. Various alternative default rules—like interpreting all statutory ambiguities to disfavor interest groups, protect reliance interests, or reduce the effect or change caused by the statute—should be rejected because they are not limited to cases where they satisfy the conditions for maximizing political satisfaction, but rather advance one view concerning substantive controversies that should be resolved by the political process.